Chattisgarh High Court
Chandrashekhar Sen @ Shekhar Sen vs State Of Chhattisgarh on 27 July, 2022
Cr.A.No.708/2015
Page 1 of 10
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.708 of 2015
{Arising out of judgment dated 16-1-2015 in Sessions Trial No.193/2012 of
the 3rd Additional Sessions Judge, Durg}
Chandrashekhar Sen @ Shekhar Sen, S/o Devanand @ Deva Sen, aged
about 24 years, Azad Chowk, Devbalouda, Police Station Purani Bhilai, Civil
& Revenue District Durg (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Acting through Station House Officer, Police Station
Purani Bhilai, District Durg (C.G.)
---- Respondent
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For Appellant: Mr. B.P. Singh, Advocate.
For Respondent/State: Mr. Soumya Rai, Panel Lawyer.
------------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sanjay S. Agrawal, JJ.
Judgment On Board
(27/07/2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred under Section 374(2) of the CrPC is
directed against the impugned judgment of conviction recorded and
order of sentence awarded dated 16-1-2015 passed in Sessions Trial
No.193/2012 by the learned 3rd Additional Sessions Judge, Durg, by
which the appellant has been convicted for offence under Section 302
of the IPC and sentenced to undergo imprisonment for life and pay
fine of ₹ 500/-, in default of payment of fine to further undergo rigorous
imprisonment for one month.
2. Case of the prosecution, in brief, is that in the intervening night of 2-7-
2012 and 3-7-2012 at Village Devbalouda, in front of C. Cabin Railway
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Station, the appellant has caused the death of Bhupat Patel by
strangulation with the help of strap of bag and thereby committed the
offence. Further case of the prosecution is that Prakash Patel (PW-5)
lodged report to Police Station Old Bhilai that his maternal uncle
Bhupat Patel, who was working in a Cloth Store at Raipur, left Raipur
at 8 p.m. after completing his duty, but did not reach home and on the
next day i.e. 3-7-2012 it was informed over telephone by some one
that Bhupat Patel was lying dead at Devbalouda, then he reached to
the spot and found injury on the neck of his maternal uncle who was
dead, then morgue intimation (Ex.P-5) was registered at zero number
on the basis of which morgue intimation No.60/2012 (Ex.P-16) was
registered and first information report (Ex.P-7) was registered and
investigation was conducted. Inquest panchnama was conducted vide
Ex.P-2 and postmortem was conducted by Dr. V.S. Baghel (PW-12)
vide Ex.P-10 in which cause of death was stated to be strangulation.
Thereafter, spot map was prepared by the investigating officer vide
Ex.P-19 and after morgue enquiry, memorandum of the accused was
taken vide Ex.P-12 and on the basis of the said memorandum, an
empty pouch of water, steel box, etc., have been seized vide Exs.P-4
& P-14 and similarly, identity card of the deceased was also seized at
the instance of the accused vide Ex.P-13. An old bag was seized
from the spot vide Ex.P-15 and was sent to the doctor along with
query. Some seized articles were also sent to the Forensic Science
Laboratory, Raipur for forensic examination vide Ex.P-22, but no FSL
report has been brought on record.
3. Statements of the witnesses were recorded under Section 161 of the
CrPC.. Thereafter, after completion of investigation, the appellant was
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charge-sheeted for offence under Section 302 of the IPC. The trial
Court has framed charge under Section 302 of the IPC against the
appellant and proceeded on trial. The accused / appellant abjured
guilt and entered into trial.
4. The prosecution in order to bring home the offence examined as many
as 16 witnesses and brought on record 30 documents Exs.P-1 to P-30
to prove its case. The defence examined Arvind Kumar (DW-1) in
support of its case, but not exhibited any document. Statement of the
accused / appellant was recorded under Section 313 of the CrPC in
which he abjured guilt and pleaded innocence and false implication.
5. The trial Court after completion of trial and upon appreciation of oral
and documentary evidence on record, proceeded to convict the
appellant herein for the offence under Section 302 of the IPC holding
that the appellant has caused the homicidal death of the deceased
and he is the author of the crime, and thereby sentenced him in the
manner as mentioned in the opening paragraph of this judgment
which has been called in question in this appeal preferred under
Section 374(2) of the CrPC.
6. Mr. B.P. Singh, learned counsel appearing for the appellant, would
submit that Damru Tandi (PW-1) & Ramnaresh Yadav (PW-2) are, at
the best, witnesses of last seen together and they have not witnessed
the incident causing the alleged strangulation of deceased-Bhupat
Patel for the reason that Damru Tandi (PW-1) has only seen the act of
altercation and the act of consuming liquor together and furthermore,
Ramnaresh Yadav (PW-2) is the witness of last seen together, but the
alleged incident is said to have happened near the pitch of cricket
ground and both these witnesses are said to have seen the incident
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from C. Cabin, whereas the incident took place at 10.30 p.m. (in the
night) and there was no light over there according to Ramnaresh
Yadav (PW-2), therefore, it cannot be said that they have actually
seen the incident i.e. the act of strangulation by the appellant to the
deceased. He would further submit that Damru Tandi (PW-1) &
Ramnaresh Yadav (PW-2) are not the actual eyewitnesses, otherwise,
they could have reported the matter to the police station as the
incident took place on 2-7-2012 of which they are the alleged
eyewitnesses, but the matter was not reported till 16-7-2012, the date
on which the said two witnesses have made statements under Section
161 of the CrPC before the police, therefore, it would not be proper to
hold them eyewitnesses, as the natural conduct of an eyewitness is to
report the matter to the police immediately after the incident. He
would also submit that these two alleged eyewitnesses have
implicated the appellant under the pressure of police which is
apparent from the statement of Ramnaresh Yadav (PW-2) that Damru
Tandi (PW-1) was detained in lockup for 2-3 days. Except the seizure
of identity card of the deceased, nothing has been seized from the
possession of the appellant. As such, conviction and sentences of the
appellant deserve to be set aside and the appeal be allowed.
7. Mr. Soumya Rai, learned State counsel, would submit that Damru
Tandi (PW-1) & Ramnaresh Yadav (PW-2) have rightly been cited as
eyewitnesses and rightly been relied upon by the prosecution, as they
have apparently seen the incident and they have rightly made
statements before the Court that it is the appellant who has
strangulated the deceased. Apart from that, railway identity card of
the deceased has also been seized from the possession of the
Cr.A.No.708/2015
appellant pursuant to his memorandum statement, therefore, it cannot
be held that the appellant is not the authority of the crime. As such,
the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
9. The first question would be, whether the death of deceased Bhupat
Patel was homicidal in nature?
10. The trial Court after appreciating oral and documentary evidence and
particularly relying upon the statement of Dr. V.S. Baghel (PW-12) and
postmortem report Ex.P-10, has clearly came to the conclusion that
cause of death of deceased Bhupat Patel was asphyxia due to
pressing of neck and death was homicidal in nature. The trial Court
has rightly relied upon the statement of Dr. V.S. Baghel (PW-12) and
postmortem report Ex.P-10 to hold that death of the deceased was
homicidal in nature and as such the said finding recorded by the trial
Court is the correct finding of fact based on the evidence available on
record and we hereby affirm the said finding recorded by the trial
Court.
11. Now, the question is, whether the appellant has caused strangulation
of the deceased or not, which the trial Court has held in affirmative?
12. The incident is said to have taken place in the intervening night of 2-7-
2012 and 3-7-2012 between 10 p.m. and 10.30 p.m. (in the night).
The incident happened on cricket ground situated near C. Cabin
Railway Station, Devbalouda. Ramnaresh Yadav (PW-2) in his cross-
examination has stated that cricket ground is situated near about 100
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ft. from C. Cabin and he has also stated that there is no light
arrangement in the ground and sitting in C. Cabin it cannot be looked
into as to what is going on in the cricket ground, but he has further
stated that light comes from the yard. According to paragraph 10 of
the evidence of Prakash Patel (PW-5) on whose report the wheels of
investigation started running, dead body of his maternal uncle Bhupat
Patel was found on the cricket ground 1-1½ Km. from C. Cabin.
13. Damru Tandi has been cited and examined as PW-1 by the
prosecution. He has stated before the Court that on 2-7-2012 at 9.30
p.m., he himself, accused Shekhar Sen and Ramnaresh Yadav (PW-
2) after selling their scrap were sitting in C. Cabin and local train came
at 10.15 p.m., the deceased alighted from the said train and asked
way to Raipur upon which the appellant informed him that he will get it
at D. Cabin, then the deceased asked for water on which the appellant
again replied that he will get it from cabin and the appellant also
informed that he is in possession of water, in turn, the deceased
informed that he has liquor in his possession, then in order to
consume liquor, both the appellant and the deceased proceeded
towards the cricket ground of C. Cabin and this witness (PW-1) &
Ramnaresh Yadav (PW-2), both, were standing nearby at some
distance. It has further been stated by Damru Tandi (PW-1) that he
himself & Ramnaresh Yadav (PW-2), both have seen that some
altercation took place between the deceased & the appellant and
thereafter, the appellant came from cricket ground and asked them to
leave the place and also made extra judicial confession that he does
not want to kill the deceased, but deceased-Bhupat Patel has died
and he has taken ₹ 500-600/- kept in his pocket and thereafter, they
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proceeded for their houses. Damru Tandi (PW-1) has also admitted
that there was no light arrangement in the cricket ground, but light
comes from cabin / yard. As such, this witness has only seen the
appellant & the deceased proceeding towards cricket ground of C.
Cabin to consume liquor and thereafter, some altercation took place
between the deceased & the appellant and immediately thereafter, the
appellant came and made extra judicial confession that he has
assaulted the deceased though he does not want to kill him and he
has taken ₹ 500-600/- from his pocket, however, this witness has not
stated that he has seen the appellant strangulating the deceased.
14. Ramnaresh Yadav (PW-2) has also narrated the same facts as stated
by Damru Tandi (PW-1) and stated before the Court that the appellant
& the deceased, both, had gone to cricket ground and consumed
liquor which they have seen, but has further stated that from some
distance they have further seen that the appellant with the help of
strap of bag, pulled the deceased by which the deceased fell down
and the appellant came to them and informed that he has killed the
deceased and he was unconscious, as he has consumed excess
liquor and he (appellant) has taken money. But in cross-examination,
Ramnaresh Yadav (PW-2) has clearly stated that distance from C.
Cabin to cricket ground is 100 ft. and there is no light arrangement in
the ground and it cannot be seen sitting in C. Cabin as to what is
happening in the ground, but further stated that light comes from yard.
As such, this witness has seen the appellant & the deceased lastly in
the ground situated near C. Cabin and further they have consumed
liquor together and some altercation took place between them and
further, there was no light arrangement in the ground and thereafter,
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the appellant has made extra judicial confession to this witness (PW-
2) and Damru Tandi (PW-1).
15. Thus, it is quite vivid that there was no light arrangement in the ground
except some light from yard coming in the ground, but it was late night
at 10-10.30 p.m. that Damru Tandi (PW-1) & Ramnaresh Yadav (PW-
2) have seen the actual altercation took place between the appellant &
the deceased, however, it cannot be certainly said that these two
witnesses - PW-1 & PW-2 have seen the appellant strangulating the
deceased. Damru Tandi (PW-1) has only said that he has seen the
altercation, whereas Ramnaresh Yadav (PW-2) has said that with the
help of strap of bag, he has seen the appellant pulling the neck of the
deceased. In order to hold that it is the appellant who caused
strangulation, there must be clear evidence of eyewitness i.e. Damru
Tandi (PW-1) & Ramnaresh Yadav (PW-2) that they have seen the
appellant strangulating the deceased. Merely on the basis of
conjectures and surmises, it cannot be held that the appellant has
caused strangulation of the deceased, particularly when the incident
took place, Damru Tandi (PW-1) & Ramnaresh Yadav (PW-2) were
standing at a distance of 100 ft. and the incident was of late night and
there was no light arrangement in the ground except the light which
was coming from yard. As such, there is no clear cut evidence on
record that it is the appellant who caused strangulation of the
deceased by which he suffered injury and died.
16. Furthermore, conduct of Damru Tandi (PW-1) & Ramnaresh Yadav
(PW-2) also creates doubt in our mind. They have been cited and
examined as eyewitnesses by the prosecution and conviction is rested
on their testimony. The incident is of 2-7-2012, dead body was
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recovered on 3-7-2012, but they did not disclose anything to any one
including police till 16-7-2012 when their statements under Section
161 of the CrPC were recorded.
17. Conduct of a witness, especially an eyewitness naturally would be that
if he has seen an incident particularly of murder of a person, he
should immediately report the matter to the police or at least to some
responsible officer or responsible person of village or community to
whom he is well known, if he cannot report the matter to the police on
account of fear of false implication, but that has not been done in the
present case by any of the eyewitnesses i.e. Damru Tandi (PW-1) &
Ramnaresh Yadav (PW-2). They have made statements on 16-7-
2012 pursuant to the memorandum statement of the appellant
discovery of identity card of the deceased was made. As such, it is
unsafe to rely upon the testimony of the above-stated two witnesses
to base conviction that too of the offence under Section 302 of the
IPC.
18. That apart, pursuant to the memorandum statement of the accused,
only one identity card of deceased Bhupat Patel has been recovered
vide Ex.P-13, but on that basis, the appellant cannot be convicted
though it has not been explained by the accused, as it is the case of
the appellant that after 14-15 days of incident, the police has falsely
implicated him. Even on the basis of theory of last seen together, the
appellant cannot be convicted in absence of any other valid piece of
evidence.
19. In view of the aforesaid discussion, we are of the considered opinion
that the trial Court is absolutely unjustified in holding that it is the
appellant who has committed the offence and murdered the
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deceased, as the prosecution has failed to bring home the offence
against the appellant beyond reasonable doubt. We hereby extend
the benefit of doubt to the appellant.
20. In the result, the appeal is allowed. Conviction and sentences
imposed upon the appellant under Section 302 of the IPC are set
aside and he is acquitted of the said charge. The appellant is in jail.
He be released forthwith, if not required in any other case.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Soma
